147 F.

3d 64

Everard GENIUS, Petitioner, Appellant,

v.
Peter PEPE, Jr., Respondent, Appellee.
No. 97-2427.

United States Court of Appeals,

First Circuit.
Heard April 7, 1998.
Decided July 1, 1998.

Robert L. Sheketoff with whom Sheketoff & Homan was on brief for
petitioner.
Gregory I. Massing, Assistant Attorney General, Criminal Bureau,
Appellate Division, with whom Scott Harshbarger, Attorney General, was
on brief for respondent.
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and
BOUDIN, Circuit Judge.
BOUDIN, Circuit Judge.

This is an appeal by Everard Genius from the district court's order denying
Genius's petition for a writ of habeas corpus. Genius was convicted of first
degree murder in state court in 1980 and is currently serving a life sentence for
that crime. Relying primarily on the well-reasoned decision of the district court,
we sustain the denial of the writ. However, in light of the unusual history of the
case, we set forth a brief summary of the facts and our reasons for affirmance.

The facts, recounted in numerous opinions cited hereafter, can be briefly stated.
In 1979, Genius--who was married at the time--stabbed to death his paramour,
Lillie Mae Nesbitt. He claimed that she had threatened him with a gun and that
he recalled nothing thereafter. He also claimed that he was compelled to
commit the murder by a voodoo curse that his wife had placed upon him. There
is no dispute that Genius did in fact kill Nesbitt; the only issue is whether an
insanity defense should have been pursued more vigorously.

Prior to the state court trial, Genius was examined by Dr. Dennis Koson, a
forensic psychiatrist employed by McLean Hospital with responsibilities at
Bridgewater State Hospital. Koson found Genius incompetent to stand trial due
to "situational depression of severe proportions" resulting from "incarceration in
the jail and the charges lodged against him." Genius was then treated for
approximately two months with antidepressant medication. In May 1980,
Koson examined Genius again and found the depression had lifted and that
Genius was competent; Koson found "no evidence of psychosis" and opined
that Genius was not insane at the time of the murder.

At almost the same time but prior to Genius's trial, the Massachusetts Supreme
Judicial Court recognized a diminished capacity "defense" to first degree
murder charges. Commonwealth v. Gould, 380 Mass. 672, 405 N.E.2d 927,
932-35 (1980). Under Gould, even a person who is not insane under
Massachusetts law might still argue that he did not have the capacity to form
the specific intent needed for a conviction of first degree murder, which in
Massachusetts requires premeditation or extreme cruelty or atrocity. See Mass.
Gen. Laws ch. 265, 1. Even without either element, the defendant might still
be found guilty of second degree murder so long as the murder was intentional.

Genius's counsel, Reuben Dawkins, determined to build his defense on the

Gould case. At trial, he called Dr. Koson who testified that while Genius was
not insane at the time of the murder, he was "extremely agitated to the point of
losing touch with the enormity of what he was doing." However, consistent
with his own prior opinion, Koson admitted that nothing suggested that Genius
was "mentally ill" at the time of the crime as required for insanity under
Massachusetts law.1 After several hours of deliberation, the jurors asked for
further instructions on extreme atrocity and after several days of deliberation,
returned a verdict of first degree murder. Genius's conviction was affirmed on
direct appeal. See Commonwealth v. Genius, 387 Mass. 695, 442 N.E.2d 1157
(1982).

Two years later, in 1984, Genius filed a pro se motion for a new trial and in that
connection was examined--although only years later, in 1987--by another
psychiatrist, Dr. Daniel Weiss. Weiss said that Genius's belief in voodoo
constituted a delusion that deprived Genius of self-control and meant that he
"could not be held to be criminally responsible." In a supplemental opinion,
Weiss said that Genius's amnesia might indicate that he was suffering from a
mental illness or defect after the murder. Treating this as newly discovered
evidence, the state Superior Court judge granted Genius a new trial and was
promptly reversed by the Massachusetts Supreme Judicial Court. See
Commonwealth v. Genius, 402 Mass. 711, 524 N.E.2d 1349 (1988).

Having exhausted state remedies, Genius then turned to the federal district
court to pursue his constitutional claim that Dawkins had rendered ineffective
assistance of counsel in the original state court trial by failing to pursue
adequately the possibility of an insanity defense. Under the Sixth Amendment,
made applicable to the states through the Fourteenth Amendment, a criminal
defendant is entitled to a competent defense counsel, although counsel's
judgments in formulating the defense strategy are entitled to substantial
deference. See Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). In response to Genius's initial habeas corpus petition, the
state moved to dismiss on procedural grounds only, arguing that Genius had
waived his objection by failing earlier to raise his constitutional claim.

In response, Judge Keeton dismissed the petition on the merits, determining

that Genius's allegations, even if true, did not show that Dawkins had rendered
ineffective assistance of counsel. At the time of this decision, it appears that the
state had not yet made any effort to develop the record to show what other
psychiatric evaluations had been done. Thus, when Genius appealed from this
original denial of the petition, this court knew little more than the facts already
recounted above concerning the defense that Dawkins had mounted at trial and
the background of his decision. On that record, this court reversed the district
court. See Genius v. Pepe, 50 F.3d 60 (1st Cir.1995).

In a brief opinion, this court pointed out that although Koson had rejected
Genius's claim of mental disorder, Weiss had now opined that Genius had been
or could have been insane. Dawkins might, under state law, have obtained an
independent psychiatric examination paid for by the Commonwealth, and the
report would have been privileged and unavailable to the Commonwealth.
Mass. Gen. Laws ch. 261, 27C(4), ch. 233 20B. Given that Genius had
admittedly been incompetent to stand trial for several months and that insanity
would offer a complete defense, this court said that Dawkins had provided
incompetent representation in failing to pursue the insanity issue.

10

As soon as the decision was rendered, the state filed a petition for rehearing,
pointing out that the record had not been adequately developed to show the
context in which Dawkins had made his decision. This court then entered an
order denying rehearing but saying that the state was free to seek to offer
additional evidence in the district court. On remand, Judge Keeton recused
himself, and the matter was transferred to Judge Stearns who proceeded to
develop the record. After doing so, Judge Stearns entered the order now under
review, rejecting Genius's claim that he had been incompetently represented
and denying his petition for the writ. This appeal followed.

11

Judge Stearns's thirty-one page opinion makes clear that Genius was in fact
evaluated six times before trial. Two of the reports have been lost, and neither
side claims to know exactly what they said, although there is some reason to
believe that they did not say that Genius was insane at the time of the murder.
Of the four reports that are in the record, prepared by three different
psychiatrists, none suggests that at the time of the crime Genius had a mental
disease or defect that might have afforded him an insanity defense.

12

Genius was first examined after his arraignment on July 16, 1979 by the court
clinic psychiatrist, but that report is missing. In December 1979, Genius was
examined by Dr. Emil Pawlowski, the Director of the Suffolk County Superior
Court Psychiatric Clinic, who found him competent to stand trial, stating that
he was "moderately depressed," but that "there was no suggestion of psychosis
or organic brain disorder." In the same month, the court ordered another
evaluation by the court clinic psychiatrist, but this report is also missing.

13

In February 1980, Dr. Koson examined Genius and found him incompetent to
stand trial, for reasons already recounted, and in April 1980, Genius was again
examined by Dr. Robert Fein, the Deputy Medical Director at Bridgewater.
Fein found Genius now competent to stand trial. In May 1980, Koson examined
Genius again and gave the opinion already described that there was no evidence
of psychosis and that Genius was not insane at the time of the murder but may
have been overcome by passion and a loss of control.

14

Judge Stearns also undertook a review of Dr. Weiss's several full opinions,
which had not been before this court at the time of the original appeal. Judge
Stearns concluded that Weiss's opinions provided no legitimate basis for
doubting Genius's sanity at the time of the trial. Weiss's original report made no
mention of a mental disease or defect--an absolute precondition under
Massachusetts law for the insanity defense--and his subsequent report equated a
belief in voodoo with mental disorder on the ground that it was an irrational
belief. Judge Stearns pointed out that this approach would render insane vast
numbers of Americans including, merely to pick an example, the millions who
believe in astrology.

15

On this second appeal, Genius does not challenge the district court's right to
supplement the record, in accordance with our order on rehearing, but does urge
that even on this record the district court erred in concluding that Dawkins had
rendered competent service. Genius repeats that it would have cost nothing for
Dawkins to have obtained the additional psychiatric report provided under state
law. Since Genius had been found temporarily incompetent to stand trial and

had at least some worrying symptoms (for example, alleged amnesia), Genius
argues that his defense counsel had nothing to lose and everything to gain by
seeking the psychiatric examination that might have given some purchase for
an insanity defense.
16

The argument is not frivolous, but neither is it persuasive. In many criminal

cases, there are (in the abstract) numerous possible defenses. Even when there
is no need for an expert or the costs of an expert are borne by the state,
pursuing any line of inquiry involves some use of time and distracts in some
degree from other possible defenses that might be pursued. As the Eleventh
Circuit has said, "counsel ... is not required to pursue every path until it bears
fruit or until all available hope withers." Solomon v. Kemp, 735 F.2d 395, 402
(11th Cir.1984), cert. denied, 469 U.S. 1181, 105 S.Ct. 940, 83 L.Ed.2d 952
(1985) (citation omitted).

17

In short, everything depends on context. Here, the context is that Genius had
been examined by three psychiatrists whose reports are available to us and none
of them suggested that there was any indication of mental disease or defect at
the time of the crime. The only asserted expert evidence of Genius's insanity at
the time of the crime was prepared seven years afterwards; without adopting
the district court's description of Weiss's analysis as "addled," we agree that it
provides very little basis even now for thinking that Genius had an insanity
defense available. By contrast, Koson's testimony did supply some hope for the
diminished capacity defense, while an insanity defense would have involved
impeaching Koson's claim that Genius was not insane at the time of the crime.2

18

Against this background, we have no hesitation in concluding that on a fully

developed record, there is no showing that Dawkins provided incompetent
defense. And in fairness to Dawkins, it is worth recording that the state
Superior Court judge who granted the motion for a new trial on grounds of
newly discovered evidence also wrote: "I ... find it hard to imagine what else
Mr. Dawkins could legitimately do in this type of case. He comported himself
as a talented advocate. He did not fail to protect his client at any time during the
trial."

19

Affirmed.

In Commonwealth v. McHoul, 352 Mass. 544, 226 N.E.2d 556, 557-58 (1967),
the Supreme Judicial Court adopted the Model Penal Code's formulation that "
[a] a person is not responsible for criminal conduct if at the time of such

conduct as a result of mental disease or defect he lacks substantial capacity

either to appreciate the criminality ... of his conduct or to conform his conduct
to the requirements of law."
2

Genius also says briefly the trial judge erred in his instruction to the jury on the
Gould defense, and that Dawkins failed to object. This has little to do with
counsel's decision in choosing to pursue a diminished capacity defense instead
of an insanity defense, and the claim is not seriously offered as independent
proof of incompetence